Elsegood & Barnden v Bronakowski

[2009] SADC 128

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

ELSEGOOD & BARNDEN v BRONAKOWSKI

[2009] SADC 128

Judgment of His Honour Judge Boylan

23 November 2009

REAL PROPERTY - BOUNDARIES OF LAND AND FENCING  - FENCES AND FENCING

Fencing dispute about the nature of the fence to be erected.  Concept of adequacy discussed.

Fences Act 1975 s12 ss(2)& (8)(aa) , referred to.
Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479; Peter Butt "Land Law" 5th ed. Lawbook No 2006 at 1620 and the cases there referred to, considered.

ELSEGOOD & BARNDEN v BRONAKOWSKI
[2009] SADC 128

1. Ms Bronwyn Elsegood lives at Lot 22, Lindner Avenue, near Ashton, Mr Waldemar Bronakowski at Lot 23, the adjoining property on the eastern side of Ms Elsegood’s property.  Both Ms Elsegood’s and Mr Bronakowski’s houses are fairly close to Lindner Avenue.  Each of their properties is long and narrow, stretching from Lindner Avenue to the south.  Ms Elsegood’s property is shorter than Mr Bronakowski’s and a little higher.  Until Mr Bronakowski built a solid dividing fence in October 2007, Ms Elsegood’s back garden commanded splendid views over a valley which contains the township of Basket Range and beyond to the range itself.  This review is about that fence.

2. The boundary between the two properties is about 66 metres long.  For many years before 2007, there was a fence dividing the properties, that fence running from Lindner Avenue for some 44 metres in a southerly direction.  That fence always formed a solid boundary between the sections of the properties on which the two houses stood.  The remaining 22 metres along the boundary had always been unfenced.  On Ms Elsegood’s side of that 22 metre unfenced line is most of her back yard.  On Mr Bronakowski’s side is open land, not given over to any use at all. 

3. Mr Bronakowski has obstructed Ms Elsegood’s view by erecting a solid colour bond fence a little over five feet high along the boundary.  Ms Elsegood wants that fence removed.  She accepts that some boundary fence is necessary and proposes an open post and wire fence which is the common type of fence in this semi-rural area.  Mr Bronakowski maintains that the area is residential and that he is entitled to have what would be regarded as a normal residential fence, a solid colour bond fence up to six feet high.

4. The history of the proceedings is a little complicated. I shall set it out in outline only. On 13 February 2007, Mr Bronakowski served upon Ms Elsegood a notice pursuant to Form 1 under the Fences Act 1975 proposing a new fence along the whole of the boundary line. His proposal was for an 1800 millimetre-high colour bond fence. On 12 March 2007, Ms Elsegood served a Form 3 Cross Notice objecting to Mr Bronakowski’s proposal. She had, at some stage, proposed the rural type fence to which I have referred. On 26 April 2007, Mr Bronakowski served a further Cross Notice complaining that Ms Elsegood’s proposals provided him and his family no security and no privacy. On 31 July 2007, Mr Bronakowski applied to the Magistrates Court for a determination of a difference or dispute between him and Ms Elsegood about a fence. The Court set the matter for a Directions Hearing on 14 August 2007. On that day, Ms Elsegood and Mr Bronakowski appeared before Mr Edgecombe SM. Ms Elsegood gave notice of her intention to make submissions and to call a real estate agent to give evidence upon the hearing of Mr Bronakowski’s application. I accept that she was not aware of her right to ask the court to view the relevant land. She made no such request.

5. The matter eventually came for hearing on the 28 September 2007 before Mr Iuliano.  Mr Iuliano ordered that Mr Bronakowski had the right to erect a five foot colour bond fence along the 24 metre section where there had previously been no fence.  Ms Elsegood told me in evidence that she has no memory of the learned Magistrate’s giving any reasons for his decision.  She also gave evidence before me that the learned Magistrate did not inform her of her right to have his decision reviewed.

6. During October 2007, Mr Bronakowski erected the fence which is still there.  Ms Elsegood was very unhappy about the fence being there and was of the view that it did not comply with the court’s order.  She had the land surveyed.  It turns out that Mr Bronakowski has erected the fence wholly on her land.  Further, it is higher than five feet.  Ms Elsegood also complains that it has no safety capping.  There is no mention in the court’s record of Mr Iuliano’s order of safety capping.

7. On the 23 May 2008, Ms Elsegood and her partner, Mr Barnden, wrote to Mr Bronakowski asking him to rectify the fence so that it complied with Mr Iuliano’s order.  He took no action. 

8. On the 10 August 2008, Mr Elsegood gave notice by letter of her intention to replace the old fence, that is the section of about 44 metres beginning on Lindner Avenue.  She suggested that that fence be 1800 millimetres high and of galvanised iron and that the remaining section of the boundary fence be a rural fence.  The rural fence was to be of post and wire construction and 1200 millimetres high. 

9. On the 8 August 2008, Ms Elsegood and Mr Barnden filed in Magistrates Court an application for an order that the order made by Mr Iuliano in September 2007 “Had not been complied with”.  Ms Elsegood supported that application with an affidavit. 

10. On the 19 August 2008 Mr Bronakowski filed another Form 3 objecting to the proposal made by Ms Elsegood. On the 9 September 2008 Ms Elsegood and Mr Barnden filed a fresh application asking the Magistrates Court to determine a dispute under the Fences Act. The court set the matter for Directions on 3 October 2008. The two files, comprising Mr Bronakowski’s original 2007 application and the new 2008 application made by Ms Elsegood and Mr Barnden, were consolidated.

11. On 3 October 2008 the matter came on before Mr Iuliano.  Ms Elsegood remains uncertain as to whether or not Mr Iuliano had before him the 2007 file. On that occasion, the valuation evidence which Ms Elsegood wanted to call was not available. 

12. After some discussion, Mr Iuliano made various orders.  The effect of those orders was that Mr Bronakowski was given permission to erect along the whole of the boundary a new colour bond fence 1800 millimetres high for the first     44 metres from Lindner Avenue and 1500 millimetres high for the remaining 22 or so metres.  The fence was to be completed within three months.  The order was contingent upon Ms Elsegood’s obtaining updated quotations.  Ms Elsegood did not think that the matter was concluded when she left court on 3 October 2008.  She was not told on that occasion that she had a right to apply to the District Court for review. 

13. On 28 October 2008 Ms Elsegood took out a further application after she had obtained up-to-date quotations.  She wanted the costs of the fencing to be awarded in accordance with those quotations.  That application was listed for hearing on 18 December 2008.  On 18 December 2008, Mr Edgecombe SM sent the matter back to Mr Iuliano.  At the hearing before Mr Edgecombe, according to Ms Elsegood, Mr Bronakowski tried to re-agitate some of the matters including mention of a retaining wall under the new fence. 

14. On 6 January 2009, the matter came back before Mr Iuliano, who varied his order of 3 October 2008.  Again, Ms Elsegood was not told of her right to have the decision reviewed.

15. Within a day or so of the 6 January 2008, Ms Elsegood sought legal advice. She eventually obtained a stay of the orders and the matter is now before me on review pursuant to s38 of the Magistrates Court Act 1991.

16. Ms Elsegood is dissatisfied with the orders made by the Magistrates Court because the fence now blocks the views which she once enjoyed.  But she is also dissatisfied about the way the proceedings before the Magistrate were conducted.  She was not told of her right to put material before the Magistrates Court and she was not told that she could ask the court to view the relevant land.  I am not going to sift through her various allegations further.  In my view, the learned Magistrate made one error which, even without any other errors, gives good cause for Ms Elsegood to be dissatisfied and for me to review the matter:  the learned Magistrate did not give reasons for making any of his orders.  The failure to give reasons is an error of law and the matter should, effectively, be reheard. 

17. One matter on the court’s record initially caused me some concern.  There is a typed document setting out Mr Iuliano’s order of 6 January 2009.  It records that the orders were made with the consent of the parties.  Mr Elsegood and Mr Barnden both told me that they did not consent to any orders.  I accept their evidence.  Even if they had consented, I am satisfied that it was not the type of consent which would prohibit them from complaining later. (See, for example, Rogers v Curnow (1979) 22 SASR 204).

18. I received an affidavit from Ms Elsegood and I heard further evidence from her.  I also heard evidence from Mr Barnden.  I received a valuer’s report and a number of photographs showing the fence and showing the views that would be obtainable but for the fence.  Mr Bronakowski was unrepresented at the hearing.  He cross-examined Ms Elsegood and Mr Barnden, but briefly.  He chose not to give evidence but made some submissions.  I feel confident that I understand the submissions of both sides. 

19. I have found this matter difficult because it is a dispute under the Fences Act 1975 and that Act does not purport to set any guidelines for my task.  Mr Bronakowski wants his privacy and Ms Elsegood wants her view.  He is not entitled to privacy(1) and she is not entitled to a view(2).  But each is entitled to a fence.

    (1) See Victoria Park Racing and Recreation Grounds Co. Ltd. v Taylor (1937) 58 CLR 479; especially at 507, per Dixon J.

    (2) See, Peter Butt "Land Law" 5th Ed. Lawbook No 2006 at para 1620 and the cases there referred to.

20. There is no need for me to stay to discuss the fence to be built along the 44 metres of the boundary line running from Lindner Avenue.  Both parties agree that the old fence must be replaced.  They are both agreed that an 1800 millimetre high solid colour bond fence is appropriate.  The dispute is about the remaining 22 odd metres of the boundary line.  Ms Elsegood would prefer that it remained unfenced.  But she will not object to an open type rural fence.  I shall proceed on the basis that the dispute between the parties is whether or not I should order a solid colour bond fence or a rural type fence.  It does not seem to me necessary, in the circumstances of this case and given the attitude of the parties, to decide whether or not I could order that no fence of any type is to be erected. 

21. As I see it, I must apply the provisions of the Fences Act 1975. Section 8 of that Act sets out a procedure to be followed where parties cannot agree on the fence to be built. In those circumstances, the Act talks about an adequate fence. But the concept of “adequacy” is, within s12(8)(aa), confined to the question of cost. Where one party wants an expensive fence and the other a cheaper fence, that other party is obliged to contribute only half the cost of an adequate fence. An adequate fence is a fence “that conforms with general standards of good fencing existing in the locality in which the fencing work is to be performed and is adequate for the purposes of the owner against whom contribution is sought.” But there is in this case no real dispute about cost. It seems to me that both parties have been reasonable about that. The dispute is about the nature of the fence. How am I to decide what should be the nature of any dividing fence along the 22 metre section?

22. The Fences Act 1987 is an Act to provide for the erection, replacement, repair and maintenance of fences. Section 12(1) & (2) reads, where relevant, as follows:

    “(1)Where any difference or dispute arises in relation to fencing work …  any person affected by the difference or dispute may by application to the court seek a determination of the matter.

    (2)Upon the hearing of an application under subsection (1) of this section the court may determine the matter in such manner as it considers just and may –

    (a)     make any finding determination or order in relation to the erection of a fence,  the nature of the fence to be erected, the line of fence to be adopted and the amount of compensation (if any) to be paid for loss of occupation of land as a result of the erection of a fence otherwise than upon the boundary of contiguous land. …”

    (emphasis is mine)

    So, the Act gives me power to determine a dispute about the nature of the fence but no guidance about how I am to determine that dispute. 

23. I have come to the conclusion, as I am obliged to determine the dispute, that I should take into account what is reasonable in all of the circumstances.  To do that, I have used the concept of adequacy.  I have ignored Ms Elsegood’s desire to maintain the view.  That is irrelevant.  On the other hand, extending the concept of adequacy, I have taken into account other general fencing in the neighbourhood.  I have viewed the properties of Ms Elsegood and Mr Bronakowski and surrounding properties.  As I have already mentioned, while the area is generally “residential”, it is semi-rural.  There are few houses in the area.  They are all on or surrounded by fairly large tracts of open land.  Neither Ms Elsegood nor Mr Bronakowski uses the land on either side of the relevant portion of the boundary for any particular purpose.  No suggestion has been made that animals have to be kept from one property or the other.  There is no evidence that Mr Bronakowski uses the relevant section of his land in any way.  In those circumstances, especially given that his house is well away from the land stretching down from the 22 metre section of boundary I have come to the conclusion that the best way to determine the dispute is to order that there be erected on that section of the boundary a 1.2 metre high rural type fence. 

24. I order as follows:

    1.Rescind the orders made on 3 October 2008 and 6 January 2009 by          Mr Iuliano SM in Magistrates Court action HHLCI-08-1046 and in lieu thereof substitute the following orders.

    2.The following fencing works must, subject to Order 3, be carried out by Zilm Fencing of 3 Oakwood Court, Ridgehaven:

    2.1remove the following fences presently situated approximately on the common boundary between Lot 22 and Lot 23 Lindner Avenue, Ashton (hereafter, “the Boundary”):

    2.1.1the approximately 42 m long corrugated iron fence; and

    2.1.2The approximately 24 m long cream-coloured sheet metal fence;

    2.2erect precisely on the Boundary (having regard to the survey pegs presently existing on Lot 22):

    2.2.1from the point at which the Boundary meets Lindner Avenue and continuing for a length of 42 m – a 1.8 m high (as measured from the lowest adjoining ground level) “Heritage Green” colour post and rail Colorbond fence with capping; and

    2.2.2from the termination of the above fence and continuing to the south-eastern most point on the Boundary – a 1.2 m high post and wire “rural” fence comprising a post at either end and at 6 m intervals together with 1 star dropper placed at the midpoint between each pair of posts, clad with         8-90-15 ringlock dog wire and topped with two wire strands.

    3.The respondent, if he wishes, may remove the fence referred to in order 2.1.2 herein and keep the materials constituting such fence so long as he does so prior to the Zilm Fencing attending to remove that fence and, if access to the applicants’ land is necessary for such removal, gives written notice to the applicants that such access will be taken at a particular date and time at least 48 hours prior.

    4.The fencing works specified in order 2 herein must be completed as soon as Zilm Fencing is able to do so, and in any event by no later than three calendar months from the date of this order.

    5.Both parties must take all reasonable steps to afford access to Zilm Fencing including permitting the fencing contractor to enter upon their land during daylight hours on weekdays and between 9 am and 6 pm on weekdays and public holidays.

    6.If in the course of complying with order 2 herein it is found that the shed on the respondent’s land encroaches upon the applicants’ land then:

    6.1    the fence in order 2.2.1 herein shall be constructed to either side of the shed and affixed thereto so that the wall of the shed forms the effective continuation of the fence; and

    6.2either party is at liberty to take such proceedings as they see fit in relation to the encroachment.

    7.     The costs of complying with order 2 herein are apportioned as follows:

    7.1in respect of order 2.1.1 the costs are to be borne equally by the parties (that is, 50% by the applicants and 50% by the respondent);

    7.2    in respect of order 2.1.2 the costs are to be borne by the respondent;
             7.3    in respect of order 2.2.1 the costs are to be borne equally; and

    7.4    in respect of order 2.2.2 the costs are to be borne equally.

    8.Upon a written quotation from Zilm Fencing for the fencing work contemplated by these Orders being provided to the Court and served upon each party, each party must within 14 days pay into Court their share of the total amount of the quotation as determined in accordance with Order 7.

    9.Either party is at liberty to apply to the Court for payment out of the above amount to Zilm Fencing upon the fencing works being completed.